Single Judge Application, Shade v. Shinseki, 24 Vet.App. (2010)

Excerpt from decision below:
"Further, the Court observes that, subsequent to the Board's decision in this case, this Court issued its decision is Shade v. Shinseki, 24 Vet.App. 110, 116 (2010) (holding that the issue of reopening must be confined to the subject of the existence of new and material evidence alone and does not include a separate outcome-based element). In Shade, the Court emphasized that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence, but was intended to provide guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements. Id. at 117."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-878
RONALD WILLIAMSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Ronald Williamson, appeals pro se a
February4, 2010,
Board of Veterans' Appeals (Board) decision that denied his claim to
reopen his previously denied
claimforentitlementtoserviceconnection foraneyedisorder,to
includeexotropiaandheterotropia.
Record (R.) at 3-22. The appellant filed an informal brief and
Secretaryfiled a brief. The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
denial of the appellant's
claim to reopen. The February2010 decision remanded claims for entitlement
to service connection
for bilateral hearing loss, tinnitus, and ulcerative colitis. R. at 18-20.
The appellant raises arguments
regarding his bilateral hearing loss claim and a loss of blood. As the
bilateral hearing loss claim has
been remanded and no issue of a loss of blood was addressed in the
February 2010 Board decision,
the Court does not have jurisdiction over these issues. See 38 U.S.C. §§
7252(a), 7266(a). A single
judge mayconduct the review of the claim to reopen because the outcome in
this matter is controlled
by the Court's precedents and "is not reasonably debatable." Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). For the following reasons, the Court will vacate that
portion of the Board's February
4, 2010, decision that pertains to the appellant's claim to reopen and
remand the matter.


I. FACTS
The appellant served on active duty in the U.S. Army from December 1963 to
June 1964.
R. at 542, 544. The appellant's service medical records indicate that he
was diagnosed with various
eye conditions beginning in 1963. R. at 451-52, 486, 491-92, 499-502. A
May 1964 medical Board
report found that the appellant was unfit for duty due to exotropia,
alternating type, but also found
that the condition had existed prior to service and was not aggravated by
service. R. at 491-92.
In February 1983, the appellant filed a claim for service connection for
an eye disorder. R.
at 413-17. That claim was denied in an April 1983 rating decision because
the "evidence does not
show that the vet.'s preexisting eye disorder was aggravated by military
service." R. at 404. The
appellant did not appeal that decision, and it became final.
In September 2004, the appellant filed a statement in support of claim
seeking to reopen his
claim for service connection for an eye disability. R. at 396. A December
2004 rating decision
denied the appellant's claim to reopen. R. at 365. The appellant filed a
Notice of Disagreement
(NOD) in February 2005. R. at 343-44. A November 2005 Statement of the
Case (SOC) continued
the denial of the appellant's claim to reopen. R. at 352-61.
The appellant filed a lay statement from Roy Lewis, dated January 2007, in
support of his
appeal to the Board. R. at 337-339. Mr. Lewis's statement indicated that
he had witnessed the
appellant being "shot over" with a large mortar gun and taken to the
hospital while in service. Id.
Mr. Lewis further indicated that he recalled that the appellant had
medical problems subsequent to
this incident. Id. Following the submission of this laystatement, a
Supplemental SOC (SSOC) was
issued continuing the denial of the appellant's claim to reopen. R. at 119-
130. The appellant also
offered his testimony at a Board hearing regarding an in-service event
that he asserts affected his eye
sight. R. at 24-35, 28-30. The Board informed the appellant in December
2009 that his two eye
disorder claims, one for exotropia and one for heterotropia, were
considered one and the same for
appellant purposes. R. at 39-40, 41. The Board then issued its February
2010 decision, here on
appeal, that denied the appellant's claim to reopen his eye disorder claim.
R. at 3-22.
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II. ANALYSIS
As noted above, the appellant's brief asserted that he wished to appeal
the issues of hearing
loss and loss of blood. These issues were not the subject of a final
decision by the Board, and the
Court does not have jurisdiction over them. The appellant's claim for
hearing loss was remanded
bythe Board's February2010 decision and is thus still pending before VA.
The appellant's assertion
regarding a loss of blood was not addressed by the Board and may
constitute a new claim. To the
extent that the appellant may have a pending unadjudicated claim at VA,
the appellant is free to
pursue such a claim with VA.
The Secretary concedes that it is necessary to remand the claim to reopen
the appellant's
claim for service connection for an eye disability. The Secretary notes
that the Board failed to
provide adequate reasons and bases for its decision. The Court agrees with
the Secretary and will
vacate the relevant portion of the Board decision and remand the matter
for readjudication.
Specifically, the Court notes that the Board determined that the lay
statements submitted by the
appellant, both his own and the statement from Mr. Lewis, were inherently
incredible. R. at 16.
However, when considering claims to reopen, the Board is required to
presume the credibility of lay
evidence. Justus v. Prinicipi, 3 Vet.App. 510, 512 (1992) ("The error that
the [Board] committed
was in assessing the credibility of the evidence prior to reopening the
claim."). The failure to do so
in this case constitutes an error necessitating remand.
Upon remand, the Board must adhere to the precedent articulated by the
Court in Justus as
well as the Court's other caselaw concerning the subject of lay evidence.
In its role as factfinder, the
Board must first "determin[e] whether lay evidence is credible in and of
itself, i.e., because of
possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.
3d 1331, 1334-37 (Fed.
Cir. 2006); see also Miller v. Derwinski, 3 Vet.App. 201, 204 (1992). In
certain situations, lay
evidence may be used to diagnose a veteran's medical condition. Jandreau v.
Nicholson, 492 F.3d
1372, 1377 (Fed. Cir. 2007) (holding that lay evidence may be used to
diagnose a condition when
"(1) a layperson is competent to identify the medical condition, (2) the
layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony describing
symptoms at the time supports
a later diagnosis by a medical professional"); Barr v. Nicholson, 21 Vet.
App. 303, 307 (2007)
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(stating that "[l]ay testimony is competent . . . to establish the
presence of observable
symptomatology and 'may provide sufficient support for a claim of service
connection'" (quoting
Layno v. Brown, 6 Vet.App. 465, 469 (1994))); Washington v. Nicholson, 21
Vet.App. 191, 195
(2007) (holding that, "[a]s a layperson, an appellant is competent to
provide information regarding
visible, or otherwise observable, symptoms of disability").
Further, lay evidence may be competent to show continuity of
symptomatology under
38 C.F.R. § 3.303(b). Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.
Cir. 2009) (rejecting the
view that "competent medical evidence is required . . . [when]
thedeterminativeissueinvolves either
medical etiologyor a medical diagnosis") (citing Jandreau, 492 F.3d at
1376-77); Savage v. Gober,
10 Vet.App. 488, 497 (1997). When considering lay evidence, the Board
should determine whether
the veteran's disability is the type of disability for which lay evidence
is competent. See Jandreau,
492 F.3d at 1377. If the disability is of the type for which lay evidence
is competent, the Board must
weigh that evidence against the other evidence of record in making its
determination regarding the
existence of a service connection. See Buchanan, 451 F.3d at1334-37.
Further, the Court observes that, subsequent to the Board's decision in
this case, this Court
issued its decision is ShadeNext Hit v. Shinseki, 24 Vet.App. 110, 116 (2010) (
holding that the issue of
reopening must be confined to the subject of the existence of new and
material evidence alone and
does not include a separate outcome-based element). In Previous HitShadeNext Hit, the Court
emphasized that the phrase
"raise a reasonable possibility of substantiating the claim" does not
create a third element for new
and material evidence, but was intended to provide guidance for VA
adjudicators in determining
whether submitted evidence meets the new and material requirements. Id. at
117. The Board should
take due account of both Justus and Previous HitShadeNext Document in its reconsideration of this
matter.
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III. CONCLUSION
Upon consideration of the foregoing analysis and of the appellant's and
the Secretary's briefs,
and a review of the record, that portion of the February4, 2010, Board
decision that denied his claim
to reopen his preciously denied claim for an eye disability, to include
exotropia and heterotropia, is
VACATED and the matter is REMANDED.
DATED: July 11, 2011
Copies to:
Ronald Williamson
VA General Counsel (027)
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